Merry Impeachment!

I’ve had an interesting little back-and-forth over at Daily Kos the past few days with Major Danby, who tried to throw some of the cold water of reality on people bouncing in their seats, impatient for impeachment.

MD’s argument is fairly well-argued, and he presents it in the form of a potential defense team refutation of articles of impeachment on the grounds of intelligence fraud, domestic espionage, and war crimes. It’s a legalistic argument, establishing the requirements for charges, examining the potential legal loopholes Bush could slip through (Republicans hate loopholes when they’re for “criminals”; not so much when they’re using them themselves), and generally saying out that the whole impeachment process could be a big legal cluster____.

In our longest comment thread and a couple of others (as well as in a number of responses to yet other comments MD made), the question of non-criminal rationales for impeachment were raised by a variety of people, including myself. It was MD’s contention that “non-criminal impeachment is a taboo and a bad precedent”.

My own argument was that, based on the variety of non-criminal complaints levied against King George III by the founders of the United States in 1776’s Declaration of Independence, including:

  • Refusing assent to laws necessary for the public good;
  • Forbidding governors to pass laws and neglecting passed laws;
  • Refusing to pass laws without jurisdictions relinquishing rights; and
  • Making participation in legislative bodies difficult;

it would be exceedingly odd for many of the same men to create a Constitution just over a dozen years later that would have restricted the removal of the head of state to solely criminal issues.

The ever-wily Major Danby brought out the “current interpretation v. original meaning” discussion, where more modern legal minds than my own get trapped by the fact that we haven’t studied the past couple hundred years of U.S. legal history. I admit it. The closest I get to a lawyer is my wife, Barbara, but she hasn’t practiced for a long time, and even then it was criminal defense law. So I didn’t even ask her.

I’m a determined guy, though. I posted a couple of questions to MD positing what solution might be used if, for instance, a President was thought to be incapacitated by, say, Alzheimer’s and for some reason the Vice President didn’t invoke the incapacitation procedures of Amendment XXV of the Constitution. If the President was a sort of popular guy, diagnosed late in his first term, able enough to be shepherded through a re-election campaign, pull the party through four years until his VP could take over for hopefully another eight…well, there’s no legal remedy other than impeachment. But that’s an old story.

As usual in these little discussions, though, I was doing my research. And what I found was a little something the Washington Post put up on the Web back in 1998 during the Clinton impeachment.

It’s a report (“Constitutional Grounds for Presidential Impeachment”), issued about two weeks after the House Committee on the Judiciary was empowered to look into possible grounds for the impeachment of Richard Nixon in February 1974. According to the notes, it was originally made digitally available by Representative Zoe Lofgren (D-CA) of San Jose.

The entire report is useful and interesting reading, at least to me. It discusses in detail the origins of the impeachment process in English law and in the debates over the Constitution’s wording, including how the term of art “high crimes and misdemeanors” replaced the “maladministration” as a part of a move to extend the reasons for impeachment beyond treason and bribery.

An entire section of the report is titled “The Criminality Issue”. It acknowledges very specifically the type of argument made by Major Danby:

The phrase “high Crimes and Misdemeanors” may connote “criminality” to some. This likely is the predicate for some of the contentions that only an indictable crime can constitute impeachable conduct. Other advocates of an indictable offense requirement would establish a criminal standard of impeachable conduct because that standard is definite, can be known in advance andd refelects [sic] a contemporary legal view of what conduct should be punished. A requirement of criminality would require resort to familiar criminal laws and concepts to serve as standards i n [sic] the impeachment process. Furthermore, this would pose problems concerning the applicability of standards of proof and the like pertaining to the trial of crimes.

A lengthy explanation ensues of why the writers of the report believe impeachment must extend past the boundaries of criminal conduct, which goes far beyond my feeble example. It concludes:

In sum, to limit impeachable conduct to criminal offenses would be incompatible with the evidence concerning the constitutional meaning of the phrase “high Crimes and Misdemeanors” and would frustrate the purpose that the framers intended for impeachment. State and federal criminal laws are not written in order to preserve the nation against serious abuse of the presidential office. But this is the purpose of the consitutional [sic] provision for the impeachment of a President and that purpose gives meaning to “high Crimes and Misdemeanors.”

The “Conclusion” of the report reiterates a point made throughout the document: that impeachment exists not as a punitive measure but as a means to protect the Constitutional system of government:

The duty to take care [a presidential duty outlined in the Constitution] is affirmative. So is the duty faithfully to execute the office. A President must carry out the obligations of his office diligently and in good faith. The elective character and political role of a President make it difficult to define faithful exercise of his powers in the abstract. A President must make policy and exercise discretion. This discretion necessarily is broad, especially in emergency situations, but the constitutional duties of a President impose limitations on its exercise.

It truly is a remarkable document that ties together the “originalist” discussions of the Constitution’s framers and the interpretation of “contemporary” (well, “1974-contemporary”, anyway) legal scholars. Thanks to Rep. Lofgren for getting it online lo these many years ago and to the WP for keeping their “Clinton Accused” site alive long enough to see Monica get her Master’s degree.